Citation Nr: 0626348
Decision Date: 08/24/06 Archive Date: 09/01/06
DOCKET NO. 04-18 813 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Muskogee, Oklahoma
THE ISSUE
Entitlement to separate schedular 10 percent disability
ratings for bilateral tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Thomas A. Pluta, Counsel
INTRODUCTION
The veteran had active service from October 1966 to May 1969.
This appeal to the Board of Veterans' Appeals (Board) arises
from a February 2003 rating action that denied separate
schedular 10 percent ratings for tinnitus of each ear. In
February 2004, the veteran's representative filed a Notice of
Disagreement, contending that the veteran should be granted a
separate 10 percent rating for tinnitus of each ear. The RO
issued a Statement of the Case in March 2004, and the veteran
filed a Substantive Appeal in April 2004.
In the above-mentioned Substantive Appeal, the veteran also
claimed an increased rating for his bilateral hearing loss.
That issue has not been adjudicated by the RO and is not
properly before the Board for appellate consideration at this
time, and is thus referred to the RO for appropriate action.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. The veteran experiences bilateral tinnitus, a disorder
which, under applicable legal authority, is assigned a single
10 percent disability rating.
CONCLUSION OF LAW
The claim for separate schedular 10 percent disability
ratings for bilateral tinnitus is without legal merit.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic
Code 6260 (2002-2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
Initially, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To
implement the provisions of the law, VA promulgated
regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2005). The VCAA and its implementing regulations include,
upon the submission of a substantially complete application
for benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify him of
what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b). In addition,
they define the obligation of VA with respect to its duty to
assist a claimant in obtaining evidence. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159(c).
In connection with the claim on appeal, the appellant and his
representative have been notified of the reasons for the
denial of the claim, and have been afforded the opportunity
to present evidence and argument with respect to the claim.
The Board finds that these actions are sufficient to satisfy
any duties to notify and assist owed the appellant. As will
be explained below, the claim lacks legal merit. As the law,
and not the facts, is dispositive of the claim, the duties to
notify and assist imposed by the VCAA are not applicable.
See Mason v. Principi, 16 Vet. App. 129, 132 (2002).
II. Analysis
The veteran has requested separate 10 percent ratings for his
service-connected bilateral tinnitus. The RO denied the
veteran's request because, under Diagnostic Code (DC) 6260,
there is no provision for assignment of a separate 10 percent
rating for tinnitus in each ear. The veteran appealed that
decision to the Board.
Tinnitus is evaluated under DC 6260, which was revised
effective June 13, 2003 to clarify existing VA practice that
only a single 10 percent rating is assigned for tinnitus,
whether the sound is perceived as being in one ear, both
ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note 2
(2005).
In Smith v. Nicholson, 19 Vet. App. 63 (2005), the United
States Court of Appeals for Veterans Claims (Court or
Veterans Court) reversed a Board decision that found that,
under pre-June 13, 2003 regulations, no more than a single 10
percent rating could be assigned for tinnitus, whether
perceived as bilateral or unilateral. The Court held that
pre-1999 and pre-June 13, 2003, versions of DC 6260 required
that VA assign dual 10 percent ratings for "bilateral"
tinnitus where it was perceived as affecting both ears.
VA appealed the Court's decision in Smith to the United
States Court of Appeals for the Federal Circuit (Federal
Circuit). To avoid burdens on the adjudication system,
delays in the adjudication of other claims, and unnecessary
expenditure of resources based on court precedent that may
ultimately be overturned on appeal, the VA Secretary imposed
a stay at the Board on the adjudication of tinnitus claims
affected by Smith. The specific appeals affected by the stay
essentially included those involving a claim for compensation
for tinnitus filed prior to June 13, 2003 in which the
appellant sought disability rating(s) for tinnitus greater
than 10 percent.
Recently, the Federal Circuit reversed the decision of the
Veterans Court in Smith, and affirmed VA's long-standing
interpretation of DC 6260 as authorizing only a single 10
percent rating for tinnitus, whether perceived as unilateral
or bilateral. Smith v. Nicholson, 451 F. 3d 1344 (Fed. Cir.
2006). Citing United States Supreme Court precedent, the
Federal Circuit explained that an agency's interpretation of
its own regulations was entitled to substantial deference by
the courts as long as that interpretation was not plainly
erroneous or inconsistent with the regulations. Id. Finding
that there was a lack of evidence suggesting that VA's
interpretation of DC 6260 was plainly erroneous or
inconsistent with the regulations, the Federal Circuit
concluded that the Court erred in not deferring to VA's
interpretation.
As a consequence of that holding, on July 10, 2006, the VA
Secretary rescinded the stay that had been imposed on all
appeals affected by Smith, and directed the Board to resume
adjudication of the previously stayed claims consistent with
VA's longstanding interpretation that a single 10 percent
disability rating was the maximum rating available for
tinnitus under DC 6260, regardless of whether the tinnitus is
perceived as unilateral or bilateral.
The Board has considered all arguments advanced on behalf of
the appellant; however, in view of the foregoing, the Board
must conclude that the version of DC 6260 in effect prior
to June 2003 precludes assignment of more than a single 10
percent rating for tinnitus. Thus, the appellant's claim for
separate 10 percent ratings for his bilateral tinnitus must
be denied under both the former and revised versions of the
regulation. As the disposition of this claim is based on the
law, and not the facts of the case, the claim must be denied
based on a lack of entitlement under the law. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994).
ORDER
Separate schedular 10 percent disability ratings for
bilateral tinnitus are denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs